A majority of the court are of opinion that the exceptions must be overruled.
1. The first question is this: The plaintiff’s counsel claimed, as a construction of law, that if the horse was exhausted on his arrival at Dedham, and refused to eat and drink there, and was not in a fit condition to drive, the defendant would have no right to drive him back to Attleborough on the same day. The court so instructed the jury; to which the defendant excepted.
It appears to us that this direction was right. For, though the allegation in the declaration is immoderate driving only, yet what is immoderate driving depends upon the condition of the horse. What would be very moderate driving of a horse in sound health and good condition, would be immoderate with a horse manifesting plain indications of exhaustion or disease.
2. It was argued by the plaintiff’s counsel that the horse did *237take cold either at Dedham or on the return home, by the want of ordinary care of the defendant; whereupon the court instructed the jury:
First. “ That after the horse went into the possession of the defendant, he was bound to take ordinary care, or such care as a prudent man takes of his own horse.” This was correct, and states the principle in the usual form.
Secondly. “ To entitle the plaintiff to recover, he must prove that the death of the horse was produced by the overdriving, or the want of ordinary care on the part of the defendant.”
The principal doubt in the case has arisen from this instruction, as applicable to the declaration. The direction was, that the defendant must prove the death of the horse to be caused by overdriving, or the want of ordinary care. If this direction had stood alone, it would have been open to the objection, that it would authorize the jury to find a verdict for the plaintiff, if the death of the horse was caused by want of ordinary care alone, although wholly disconnected with any immoderate driving. If so, it would have been wrong, because, in this declaration, immoderate driving was the only cause alleged.
But this direction was given in connection with evidence tending to show that overdriving and the injurious effect of over-driving, upon a horse exhausted and diseased, as this horse appeared to be, and the want of due care of the horse, at Dedham, and in stopping on the way home, for which the defendant was responsible, were the combined and actual cause of his death. The judge did direct the jury, that if the death of the horse was caused, in whole or in part, by the negligence of the plaintiff, after he was returned by the defendant, the plaintiff would not be entitled to recover; and also, that the defendant was responsible for ordinary care of the horse whilst in his possession. Taking the whole charge together, we think the judge intended to direct the jury, that, to entitle the plaintiff to recover, he must prove that the death of the horse was produced either solely by overdriving, or by want of ordinary care combined with, and giving effect to immoderate driving. So understood by the jury, as we think it was, it would not warrant them in *238finding a verdict for the plaintiff on proof of want of ordinary care only, exposing him to a fatal disease, unconnected with immoderate driving.
If the counsel for the defendant understood the direction otherwise, he should have called the attention of the judge, at the time, to the supposed variance between the- allegation and the proof, in order that the plaintiff might move to amend his declaration, or, in the absence of such motion, to enable the judge to qualify the proposition stated to the jury, so as to conform to the declaration and the state of the evidence; but no such exception was then taken.
It is very important that no objection to a verdict be brought before this court by an exception which was not in some form taken at the trial, especially in cases where there is ground to believe that if it had been then brought to the attention of the judge and the adverse counsel, it might have been avoided by an amendment, or by a more specific direction of the judge, sustaining or overruling it. The party objecting would have the full benefit of his objection in matter of law, if well founded, either by a ruling in his favor, or an allowance of the exception, and the rights of both parties be secure.
This observation acquires greater weight from the consideration of the very brief and informal mode of declaring and answering, warranted and even required by the new practice act, so different in accuracy and fulness from the pleadings at common law; also that a great part of all trials by jury are, by-existing laws, had in the court below, and there is no mode of correcting any error in matter of law, however slight, often not much affecting the general merits of the case, but by setting aside the verdict, and ordering another trial in the same court, at great expense. And it is an act of justice to the judge before whom the trial is had, that his ruling in matter of law, necessarily made in the midst of a trial, should not be reversed, unless his mind was specifically drawn to it, and acted upon it as deliberately as time and circumstances would admit.
Exceptions overruled.